Her take on the cases is that "At first glance, the United States
Supreme Court's preemption jurisprudence in the realm of products
liability cases is a nearly incoherent muddle. But a closer view
actually reveals an unmistakable pattern: in every case, the Court,
with only one exception, has adopted the position of the relevant
federal agency as to whether the plaintiff's state law claims should be
preempted by that agency's regulations. The Court is hardly forthright
about its dependence upon agencies." She argues that this is right: "courts should look to agencies to supply
the data and analysis necessary to determine if preemption is
appropriate; i.e., to determine when a uniform, national regulatory
policy with respect to a certain product makes the most sense or,
instead, whether such regulation is better left to the states, in which
case a plaintiff's common law claim should be permitted to proceed." She includes the caveat that agencies are subject to incompetence and capture, and proposes some additional safeguards to deal with that problem.